| [2017] FWC 896 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Ms Belinda Brown
v
Park Beach Bowling Club Limited; Ms Kelly Walcot and Mr Grant Walden
(AB2016/188)
COMMISSIONER SAUNDERS |
NEWCASTLE, 23 FEBRUARY 2017 |
Application for an FWC order to stop bullying; whether applicant bullied at work; application dismissed.
[1] Ms Belinda Brown is employed as a casual food and bar attendant by the Park Beach Bowling Club Limited (the Club) in Coffs Harbour, New South Wales. Ms Brown alleges that she has been bullied at work within the meaning of s.789FD of the Fair Work Act 2009 (Cth) (the Act). In her application to the Fair Work Commission (the Commission) for an order to stop bullying (the Application), Ms Brown named Mr Grant Walden, Chief Executive Officer, and Ms Kelly Walcot, Administration and Events Manager, as the persons who she alleges have engaged in bullying behaviour.
[2] Ms Brown seeks an order that the warning issued to her by the Club on 18 October 2016 be withdrawn or retracted. She also seeks an order to reaffirm the measures the Club has agreed to take to deal with workplace relations matters involving Ms Brown, such as the Board of the Club, together with assistance and advice from Clubs NSW, dealing with all disciplinary and performance matters involving Ms Brown.
[3] Ms Brown gave evidence in support of her claim. She also called evidence from Ms Michelle Love, Gaming Operator at the Club, Ms Megan Edwards, Organiser with United Voice, and Ms Ellen Lockrey, Receptionist employed at the Club. The following witnesses gave evidence in support of the defence against Ms Brown’s claim: Mr Walden, Ms Walcot, Mr Garry Bugden, Chairman of the Club, Mr Wilfred Gardner, Vice Chairman of the Club, Mr Clint Indrele, Principal Consultant of Indrele Workplace Consulting, Mr Gary Wynands, Bar Coordinator at the Club, Mr Paul Cunningham, Duty Supervisor at the Club, and Mr Brett Wellard, Operations Manager at the Club.
[4] Section 789FC of the Act provides as follows:
“789FC Application for an FWC order to stop bullying
(1) A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.
(2) For the purposes of this Part, worker has the same meaning as in the Work Health and Safety Act 2011, but does not include a member of the Defence Force.
Note: Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, and outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.
(3) The application must be accompanied by any fee prescribed by the regulations.
(4) The regulations may prescribe:
(a) a fee for making an application to the FWC under this section; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”
[5] There is no contest that Ms Brown is a worker and reasonably believes that she has been bullied at work. Accordingly, there is a valid application before the Commission.
[6] Section 789FD of the Act sets out the test for establishing whether a person has been bullied at work. It provides as follows:
“(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaved unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.”
[7] The test is objective. Behaviour is unreasonable if a reasonable person, having regard to the circumstances, may consider it to be unreasonable. 1
[8] In determining whether behaviour concerning or constituting discretionary managerial decisions directed to a worker is unreasonable it is useful to consider whether the behaviour “lacks an evident and intelligible justification”. 2 Conduct does not have to be the best or preferable course of action to be reasonable.3
[9] It is apparent from the reference to “repeatedly” in s.789FD(1) of the Act that a one-off incident will not be a sufficient basis for the making of an application to the Commission. 4 Provided there is more than one occurrence, there is no specific number of incidents required to meet the condition of “repeated” behaviour, nor does the same specific behaviour have to be repeated.5 The statutory provision requires repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs.6
[10] It is necessary to undertake “an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time” to determine whether the action constitutes “reasonable management action”. 7 The test for reasonable management action is whether the “management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.”8 I adopt Commissioner Hampton’s explanation of these concepts in GC (at [56]):
“In general terms this is likely to mean that:
any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.”
[11] Notwithstanding the fact that a wide range of matters were traversed in the witness statements filed on behalf of Ms Brown, in final submissions, Mr Acev, Industrial Research Director of United Voice, who appeared for Ms Brown in the proceedings, refined and limited Ms Brown’s allegations of bullying behaviour to the following four instances:
(a) the first instance of alleged bullying relates to the Club’s investigation into complaints made by Mr Frank Patricks and Ms Leah Riches against Ms Brown;
(b) the second instance relates to an allegation that Ms Brown was spoken to for being rude and insubordinate towards Mr Wynands;
(c) the third instance relates to an alleged failure to conduct an investigation into a matter involving Ms Brown in a fair and equitable manner; and
(d) the fourth instance concerns a complaint made by Ms Brown against Mr Wynands.
First instance of alleged bullying
[12] Ms Brown contends that the Club and Mr Walden engaged in the following unreasonable acts or omissions in relation to the complaints made by Mr Patricks and Ms Riches:
(a) failure by the Club to provide all relevant information in relation to the complaints made by Mr Patricks and Ms Riches against Ms Brown. In particular, Ms Brown contends that it was unreasonable of the Club not to inform Ms Brown of what Mr Stewart told the Club, through its investigators, in relation to precisely what he observed or heard, at which time, on which date, and at what place. Further, Ms Brown contends that the Club unreasonably failed to provide her with CCTV footage of the incident involving Ms Riches;
(b) failure by the Club to provide tangible evidence in relation to Mr Kalen Stewart. In particular, Ms Brown contends that the Club did not obtain, and provide to Ms Brown, a witness statement or “written evidence” from Mr Stewart;
(c) the Club issuing Ms Brown with a written warning dated 18 October 2016 in relation to the incident involving Mr Patricks; and
(d) failure by the Club to conduct a full and thorough investigation. This is another way of expressing the alleged failures in (a) and (b) above.
[13] Ms Brown seeks an order that the warning given to her in relation to the complaint made by Mr Patricks be removed or withdrawn, but does not seek such an order in relation to the warning she received in relation to the complaint by Ms Riches. 9
Mr Patricks’ complaint
[14] On 31 October 2015, the Club received a complaint from a former employee, Mr Patricks, about Ms Brown. In particular, Mr Patricks alleged that Ms Brown made the following comment from behind the bar at the Club in connection with a certificate of appreciation he received from the Club in relation to his efforts at the Club:
“Maybe I have to put on 80 kg before I can be recognised for an award.”
[15] Mr Patricks was not present at the Club when Ms Brown allegedly made this comment; he says he was told about the comment by Mr Wynands and “it was confirmed by Kalen Stewart.” 10
[16] The Club engaged Mr Peter Norrie, an external human resources consultant, to investigate, among other things, Mr Patricks’ allegation against Ms Brown.
[17] On 11 November 2015, Ms Brown was suspended from her employment at the Club on full pay while Mr Norrie conducted his investigation into the allegation made by Mr Patricks and a separate complaint that Ms Brown had used aggressive language towards a fellow colleague, Ms Riches, on 9 November 2015 in the foyer of the Club. The allegations the Club was having investigated by Mr Norrie during Ms Brown’s period of paid suspension were communicated to her in a letter dated 11 November 2015. 11
[18] Mr Norrie met with Ms Brown and her support person during his investigation to hear her version of events in relation to the matters he was investigating.
[19] By letter dated 18 November 2015, the Club informed Ms Brown that Mr Norrie had “investigated the allegations and determined that, on balance, the first allegation was proven in relation to the aggression that was displayed towards a fellow employee in the foyer of the Club. As such you are warned that your conduct is unsatisfactory and immediate improvement is required…” No mention was made in that letter of Mr Patricks’ complaint or the outcome of Mr Norrie’s investigation in relation to it.
[20] Mr Norrie informed Mr Walden that he had “insufficient evidence” in relation to the complaint by Mr Patricks. 12
[21] On 10 February 2016, Ms Edwards sent an email, on behalf of her member, Ms Brown, to Mr Walden in relation to the complaint by Mr Patricks. In that email, Ms Edwards stated:
“… Ms Brown our member maintains that she did not say the statement attributed to her in Frank Patricks’ complaint
[22] By a further email to Mr Walden sent on 19 February 2016, Ms Edwards again asked whether the Club had “obtained the formal written statement from Kalen Stewart as requested.” Ms Edwards followed the issue up with Mr Walden in a further email sent to him at 2:50pm on 26 February 2016. Mr Walden sent the following email response to Ms Edwards (cc to Mr Norrie) at 3:22pm on 26 February 2016:
“Meegan,
...As this matter has been resolved there will be no further action towards Belinda on this matter…”
[23] On 5 April 2016, Ms Brown and Ms Edwards met with Mr Walden, Mr Bugden and Ms Love. At that meeting Mr Walden informed Ms Brown that he would “write a letter to Frank [Patricks] and tell him that there will be no further action taken against you and that the matter is closed.” 13
[24] On 19 April 2016, Ms Edwards sent an email to Mr Walden in the following terms:
“Hi Grant,
Just following up from meeting held on Tuesday 5 April 2016 on the documentation that was going to be attached to Belinda’s first suspension letter dated Wednesday 11 November 2015 outlining that there was no substantiating evidence to support Mr Patricks alleged allegations against Belinda…”
[25] By letter dated 6 May 2016, Mr Walden provided the following response to Mr Patricks in relation to his complaint against Ms Brown:
“Dear Frank,
I refer to your email dated Saturday, 31 October 2015. After lengthy investigation into your concerns regarding comments made by Belinda Brown, it has been found that insufficient third – party documentation was not supplied at the time of the incident to support your concerns. Therefore it is the finding of this investigation that as comments at the time in question cannot be supported, no further action will be taken against Belinda Brown in regards to this incident.
Please understand that although this investigation and result has taken some time, this is the normal procedure that needs to be carried out.
The Board have been informed of these findings and that this matter as it stands has been closed.”
[26] Later on 6 May 2016, Mr Walden sent Ms Edwards a copy of his letter to Mr Patricks. Ms Edwards provided that letter to Ms Brown.
[27] On 4 July 2016, Ms Brown filed her Application in the Commission.
[28] In July 2016, the Club engaged Mr Indrele, an external workplace consultant, to conduct an investigation and review a wide range of workplace complaints and issues at the Club, including the issues raised by Ms Brown in her Application. Mr Indrele spoke to Mr Kalen Stewart as part of his investigation.
[29] Mr Indrele gave evidence that during his investigation it was brought to his attention that Mr Stewart could not recall the date on which the comment was allegedly made by Ms Brown about Mr Patricks and that was the reason the Club had left the “particular issue alone”. 14 However, Mr Indrele was not able to recall with any certainty who told him that information.15 No evidence was given by any employee or officer of the Club to support Mr Indrele’s suggestion that the Club may have left the complaint made by Mr Patricks “alone” because Mr Stewart could not recall the date on which the alleged comment was made. In the absence of any such evidence, coupled with the fact that Mr Indrele was not able to recall with any certainty who told him that information, I am not prepared to, and do not, make a finding that the Club left the complaint made by Mr Patricks “alone” in late 2015 or early 2016 because Mr Stewart could not recall the date on which the alleged comment was made.
[30] Mr Indrele reached the following findings in his investigation report dated 26 July 2016 in connection with the allegations made by Mr Patricks against Ms Brown:
“... 4) On the issue of the second allegation made by Mr Patricks, it would appear that the Club at the time did not feel that it had sufficient evidence to substantiate this complaint. At this same time, I do not believe the Club was under no obligation to state to Ms Brown that the second allegation was unsubstantiated (particularly given the first allegation was proven), nor was it required to further communicate this with supervisors across the Club.
5) However, upon further examination of the complaint made by Mr Patricks in this investigation, Mr Stewart confirmed that Ms Brown did in fact make a comment in relation to Mr Patricks’ weight, at or around the time of Mr Patricks’ complaint. Specifically, the allegation made by Mr Patricks was that Ms Brown commented to two other employees “maybe I have to put on 80 kilos before I can be recognised for an award”, and that this comment later came to his attention. Mr Stewart confirmed the above comment to be a reasonably accurate account of what Ms Brown had said at the time. Mr Stewart stated that the only thing he could not recall was the exact date the comment was made, but did confirm it was in connection with the award that Mr Patricks had received from the Club around 23 September 2015. That being the case, it would appear that Club had/has a reasonable basis for determining the second allegation made by Mr Patricks was also proven/valid, and that the Club was possibly incorrect to advise Mr Patricks that his complaint was not valid.
6) Further to 5), I note that in point 2.2 of the notes attached to Ms Brown’s Application at dot point 7, it is stated that Ms Brown ‘emphatically denied both allegations’. This is now highly questionable given the information from Mr Stewart…
Recommendations
Take into account the findings of this investigation, our recommendations are as follows:
…
6) We will also assist in the preparation of outcome letters for Ms Brown, Mr Walden and Ms Walcot …”
[31] Mr Indrele did not recommend that Ms Brown receive a written warning, or be subjected to any other disciplinary action, in relation to the complaint made about her by Mr Patricks.
[32] On 18 October 2016, Ms Brown received a written warning letter from the Club in relation to the “making of inappropriate and insulting comments towards former employee Frank Patricks towards the end of 2015.” Ms Brown was warned that she must “show an immediate and sustained improvement in the areas for which you have been warned. Should this not occur, further disciplinary action may result up to and possibly including the termination of your employment.” This written warning was signed by Mr Bugden.
[33] Neither of the persons named in the Application signed or approved the warning letter issued to Ms Brown on 18 October 2016; it was signed by Mr Bugden in his capacity as Chairman of the Club. Mr Walden did not see the warning letter, and was not aware of it, before it was issued to Ms Brown. 16
[34] Mr Walden explained in his witness statement that even though the Club received Mr Indrele’s report in July 2016 the warning letter in relation to Mr Patricks’ complaint was not issued to Ms Brown “until October 2016 as we were hopeful that the matter would be resolved before proceeding to hearing and we did not want to upset any chance of a resolution.” Mr Walden provided the following explanation in his witness statement as to his understanding of the change in the Club’s position from initially forming the view that Mr Patricks’ allegation “lacked sufficient evidence” to later issuing a written warning to Ms Brown in relation to the incident:
“…we re–opened this matter as Clint Indrele of Indrele Workplace found corroborating evidence from Kalen Stewart that suggested that Belinda had spoken to Frank in a derogatory manner about his weight.”
[35] The difficulty with this change in position by the Club is that it was aware from as early as Mr Patricks’ email dated 31 October 2015 of Mr Patricks’ contention that he was told about the alleged comment by “Garry Wynands and it was confirmed by Kalen Stewart.” 17 That is, the Club was aware from as early as October 2015 that Mr Stewart was a possible witness to the comments allegedly made by Ms Brown about Mr Patricks.18 Mr Wynands was later ruled out as a potential witness to the event.19
[36] Mr Stewart was on annual leave during Mr Norrie’s investigation into the incident, 20 but there was plenty of time after his return to work to interview him. Mr Stewart was still employed by the Club at the time of the hearing of this matter.
[37] On 10 February 2016, Ms Edwards made a written request to Mr Walden for a statement to be obtained from Mr Stewart in relation to Mr Patricks’ allegation. No such step was taken by the Club. Instead, it elected to make, or confirm, its “finding … that … [Ms Brown’s] comments … cannot be supported, [and] no further action will be taken against Belinda Brown in regards to this incident.” 21 Ms Brown was informed of the Club’s decision in that regard in April and May 2016. In those circumstances, she was entitled to, and did, treat the matter as at an end. It therefore came as a surprise and shock to Ms Brown when she received the written warning dated 18 October 2016 in relation to the complaint made by Mr Patricks almost one year earlier.
[38] Notwithstanding the fact that Mr Bugden signed the warning letter dated 18 October 2016, he accepted in cross examination that it was not appropriate or reasonable for Ms Brown to have been given the warning letter on 18 October 2016 in circumstances where she and Mr Patricks had been informed many months earlier (in about May 2016) that Mr Patricks’ allegation against Ms Brown could not “be supported, no further action will be taken against Belinda Brown in regards to this incident … this matter as it stands has been closed.” 22 Mr Bugden also accepted that the warning issued to Ms Brown on 18 October 2016 was an unreasonable disciplinary measure.23
[39] In Toll Holdings Limited v Johnpulle, 24 a Full Bench of the Commission considered the issue of whether an employer is entitled to rely on an earlier act of misconduct of which it was aware in the context of an unfair dismissal claim:
“[15] It may be accepted that, under the general law, an employer is disentitled to summarily dismiss an employee for an earlier instance of misconduct on the part of that employee where the employer with full knowledge of the misconduct had decided to retain the employee in employment. It would be difficult to conclude for the purpose of s.387(a) of the FW Act that an employer who had condoned misconduct by an employee in this way and had thus lost the right of summary dismissal at law nonetheless had a valid reason for dismissing that employee. The Commissioner therefore did not err in declining to find that the instances of misconduct described in the second, third and fourth allegations against Mr Johnpulle constituted valid reasons for his dismissal. It may also be accepted that, for the purpose of s.387(h), the Commissioner was entitled to treat as relevant that Toll had previously elected not to dismiss Mr Johnpulle for his earlier instances of inappropriate behaviour towards Mr Karzi. However the fact that Mr Johnpulle had (as the Commissioner found) engaged in the earlier instances of inappropriate behaviour did not thereby become otherwise irrelevant in the consideration of whether his dismissal was harsh, unjust or unreasonable. The Commissioner’s own findings supported the conclusion, stated in Toll’s dismissal letter, that Mr Johnpulle had engaged in a “pattern of unacceptable behaviour” towards Mr Karzi and had persisted in that behaviour notwithstanding that he had been told by the Team Leader to cease such behaviour and he had agreed to do so. That was necessarily a highly material consideration which, while not necessarily being determinative, was adverse to the conclusion that the dismissal was harsh, unjust or unreasonable. It was also relevant to the issue of reinstatement, since it went to the degree of risk that Mr Johnpulle might repeat such behaviour in future if reinstated.”
[40] In the present case, I am satisfied that in late 2015 the Club had full knowledge of the allegations made by Mr Patricks against Ms Brown including the fact that Mr Stewart was a potential witness to the incident. Neither the Club nor its investigator, Mr Norrie, interviewed Mr Stewart. Instead, the Club made a conscious decision to inform both Mr Patricks and Ms Brown in about May 2016 that Mr Patricks’ allegation against Ms Brown could not “be supported, no further action will be taken against Belinda Brown in regards to this incident … this matter as it stands has been closed.” 25 Having regard to those matters, I am satisfied that the decision by the Club to issue a written warning to Ms Brown in October 2016 for the incident involving Mr Patricks about 12 months earlier lacked an evident and intelligible justification and was unreasonable. For the same reasons, I am satisfied that the Club’s conduct in issuing the written warning to Ms Brown in October 2016 was not reasonable management action carried out in a reasonable manner.
[41] In light of my conclusion that it was unreasonable for the Club to issue Ms Brown with a warning on 18 October 2016 in relation to the complaint made by Mr Patricks in October 2015, I do not need to deal with the submission made on behalf of Ms Brown that I should draw a Jones v Dunkel inference in relation to the fact that the Club did not call Mr Stewart to give evidence in these proceedings.
Ms Riches’ complaint
[42] Ms Riches complained to the Club that Ms Brown had used aggressive language towards her in connection with a complaint Ms Riches made in relation to another staff member. It was alleged that Ms Brown spoke in this way to Ms Riches in the foyer area of the Club on 9 November 2015. 26 Ms Brown was suspended on full pay in relation to this incident and it was investigated by Mr Norrie.
[43] Ms Riches was in tears following her interaction with Ms Brown on 9 November 2015. Ms Riches told Mr Walden about the incident on the day it allegedly happened. 27 Mr Walden called Ms Brown to the boardroom at the Club to discuss the incident with him and Ms Riches. Ms Brown was not willing to discuss the matter at that time because her preferred support person was not available to attend the discussion.28
[44] Ms Riches also gave the Club a contemporaneous note in which she set out her version of what happened on 9 November 2015. 29
[45] It has never been in dispute that Ms Brown had a discussion with Ms Riches at about 3pm on 9 November 2015, at which time they discussed a complaint made by Ms Riches in relation to another staff member, Ms Love. 30 In that discussion Ms Brown was trying to protect her friend, Ms Love.31
[46] Ms Brown accepts that it was not her position to question Ms Riches in relation to the incident involving Ms Love. 32
[47] Mr Norrie interviewed Ms Brown in relation to the complaints made by Ms Riches and Mr Patricks. 33 Ms Brown said to Mr Norrie, “I admit that I used assertive language and was assertive but not aggressive”34 in her discussion with Ms Riches. In contrast, Ms Riches contends Ms Brown used aggressive language towards her.
[48] Mr Norrie investigated the allegation and determined, on balance, that Ms Brown had used aggressive language towards Ms Riches in the foyer area of the Club. 35 Ms Brown received a written warning on 18 November 2015 in relation to this incident.36
[49] In circumstances where Ms Brown admitted speaking to Ms Riches at the time and place alleged by Ms Riches, admitted using “assertive language” and being “assertive” in the discussion with Ms Riches, and admitted that it was not her position to question Ms Riches about the matter, I am satisfied that neither the Club nor any of its employees or agents such as Mr Norrie acted unreasonably in not providing the CCTV footage of the incident to Ms Brown. It is most unlikely that viewing CCTV footage (without sound) would assist in determining whether Ms Brown used assertive language and acted assertively, as she contends, or used aggressive language, as Ms Riches contends. Ms Brown gave evidence, which I accept, that Mr Walden told her he had looked at the CCTV footage and it looked like “two people talking”. 37 Further, I am satisfied that the Club, its employees and Mr Norrie acted reasonably in:
Conclusion in relation to the first instance of alleged bullying
[50] For the reasons set out above, I am satisfied that Mr Bugden, the person who signed the warning letter dated 18 October 2016, acted unreasonably towards Ms Brown in issuing such a warning to her at that time, and his conduct in that regard was not reasonable management action carried out in a reasonable manner. However, I reject the other arguments put on behalf of Ms Brown in relation to the first instance of alleged bullying. In particular, I am satisfied that the Club, its employees and its investigator acted reasonably in giving Ms Brown sufficient information in relation to the complaint made by Mr Patricks. Ms Brown clearly understood the allegation and was able to, and did, respond to the allegation by denying that she made any such comment about Mr Patricks. Further, in circumstances where the Club did not rely on any information from Mr Stewart in reaching its conclusion in relation to Mr Patricks’ complaint by April or May 2016, the Club did not act unreasonably in not providing information, or a witness statement or other evidence, concerning Mr Stewart’s account or recollection of the incident to Ms Brown. I also reject the contention that the Club acted unreasonably in not viewing or providing CCTV footage of the incident involving Ms Riches to Ms Brown or in making its decision to issue Ms Brown with a written warning on 18 November 2015, for the reasons set out in paragraphs [42] to [49] above.
[51] Although Mr Bugden engaged in unreasonable conduct towards Ms Brown, he is not a person named in the Application, nor did he otherwise become a party to the proceedings. As a matter of natural justice, it would not be appropriate in those circumstances to make any order against Mr Bugden, even if I found that the other statutory requirements for an order to stop bullying were satisfied. 38 However, Ms Brown is entitled to rely on this unreasonable conduct on the part of Mr Bugden in support of her claim that a group of individuals, of which Mr Bugden is a part, repeatedly behaved unreasonably towards her.39
Second instance of alleged bullying
[52] Ms Brown was allegedly spoken to for being rude and insubordinate towards Mr Wynands. Ms Brown contends that Mr Walden behaved unreasonably towards her in relation to this incident in the following ways:
(a) Ms Brown denies that she was rude or insubordinate to Mr Wynands. She also claims the matter was unresolved and she was not given a written or oral warning in relation to it; and
(b) Ms Brown contends that Mr Walden failed to deal with her in a fair and equitable manner and provide her with consistent performance management standards. In particular, Ms Brown contends that it is unfair and unreasonable for a supervisor such as Mr Wynands to receive an oral warning for speaking rudely and abruptly to staff, whereas Ms Brown was suspended, investigated and received a written warning for using aggressive language towards Ms Riches.
[53] Mr Wynands gave evidence to the following effect in paragraph [5] of his witness statement in relation to his interaction with Ms Brown at the commencement of her shift on 10 December 2015:
Mr Wynands: |
“Hello Belinda, you are late [Mr Wynands says she was five minutes late]” |
Ms Brown: |
“Not according to the bundy clock.” |
Mr Wynands: |
“Do you have your RSA/RCG card?” |
Ms Brown: |
“You’re like the Gestapo.” |
Mr Wynands: |
“This is a directive from my boss.” |
[54] Mr Wynands had been directed by his boss to check each employee’s registered service of alcohol (RSA) card. Mr Wynands felt as though Ms Brown had been hostile to his “enquiries/directives”. Mr Wynands prepared a supervisor’s report in relation to the incident and passed his report to his manager.
[55] Mr Walden gave evidence that he spoke to Ms Brown on 11 December 2015 in relation to the incident involving Mr Wynands on the previous day. 40 Mr Walden’s evidence in that regard is supported by a file note he prepared of his meeting with Ms Brown on 11 December 2015.41 Relevantly, that file note records the following:
“… Belinda explained that Garry had spoken to her very abruptly on her arrival for her shift, saying that she was late, proven incorrect as per time clock report, and then demanded that Belinda have her Competency Card (RSA/RCG) with her without further explanation.
I, Grant Walden, then explained to Belinda the reason for the request for the card acknowledgement, but accepted that the issue could have been handled better and more diplomatically. That at no time were any staff to speak to one another abruptly or rudely and that even though he [Mr Garry Wynands] may have done so in the past, he had apologised immediately.
Grant went on to say to Belinda that any negative response in this type of situation would be seen as an attempt to discredit the supervisor and only increase any tension that may be present. Grant asked that should any form of this behaviour by any supervisor happen again, he would like to be informed and for the staff member to acknowledge the supervisor’s instructions without further comment. Grant does not condone bad behaviour by any staff to one another and this includes supervisors, to which he would be having a meeting to discuss with them.
Grant then explained to Belinda that there would be no further action towards her in relation to this incident and accepted the details presented, but reaffirmed that he would prefer to see these matters handled better by both members of staff and with mutual respect for one another and the relevant positions…”
[56] Ms Brown responded to paragraph [5] of Mr Wynands’ witness statement in the following way in her witness statement in reply:
“[69] In respect to Point 5, I deny any hostility towards Mr Wynands as claimed. Mr Wynands offered no explanation as to why he wished to cite my accreditation cards, simply demanded that I do.
[70] His tone was demanding and abrupt, rude like Gestapo in the movies demanding “your papers”.
[71] I indicated that my accreditation was in my locker. He didn’t make me retrieve it or produce it.
[72] The issue of lateness as referenced in Point 5 was dismissed at a meeting on 11 December 2015 where Grant Walden acknowledged that my reply ‘not according to the bundy clock’ was shown to be correct. A copy of the meeting minutes is attached and marked B.”
[57] The meeting minutes to which Ms Brown refers in paragraph [72] of her witness statement in reply are those set out in the paragraph [55] above.
[58] In cross examination, Ms Brown agreed that she told Mr Wynands “there is no need to be Gestapo–like.” 42
[59] Mr Wynands accepted in cross examination that both he and Ms Brown were at fault in relation to their discussion at the commencement of her shift on 10 December 2015. 43
[60] In light of Ms Brown’s concession that she told her supervisor, Mr Wynands, that he was acting in a Getapo-like manner on 10 December 2015, I reject the contention that Ms Brown was not was rude or insubordinate to Mr Wynands.
[61] I also reject Ms Brown’s claim that the matter was unresolved. Ms Brown accepts the accuracy of the “meeting minutes”, 44 the following paragraph of which demonstrates that Ms Brown was both told no further action would be taken against her in relation to the incident and given an oral reminder that staff are required to treat one another with mutual respect:
“…Grant then explained to Belinda that there would be no further action towards her in relation to this incident and accepted the details presented, but reaffirmed that he would prefer to see these matters handled better by both members of staff and with mutual respect for one another and the relevant positions…”
[62] As to the claim of comparative unfairness, Mr Wynands and Mr Walden accept that Mr Wynands has spoken to staff rudely and abruptly in the past, for which he has apologised and received an oral reprimand. 45 An oral reminder to treat staff with respect is what Ms Brown received as a result of her discussion with Mr Wynands at the commencement of her shift on 10 December 2015. Accordingly, there is no comparative unfairness to Ms Brown in relation to the oral reminder given to her in connection with the incident on 10 December 2015 and the oral warning given to Mr Wynands for speaking to staff rudely and abruptly in the past.
[63] The fact that Ms Brown received a different form of disciplinary action, namely a written warning, for her use of aggressive language towards Ms Riches on 9 November 2015 is a different matter. Relevant to that warning is the history of Ms Brown’s attitude towards, and respect for, particular employees and supervisors in the workplace. On 26 May 2015, Ms Brown received a first written warning for the following reasons:
“…The reason for the first written warning is due to your work lack of respect for management. More specifically during the past few months several issues were brought toward your attention of which you have corrected but most importantly the constant lack of respect for the Club and direction from Management.
The Club has expectations and standards in regard to the areas mentioned and are as follows:
Remember you are employed as a casual employee to work rostered hours in the areas/departments as required, you do not have any authority to disobey a direction or response from any member of Management, you are to accept direction as provided. There has also been previous times during the past eighteen months when you have refused duties and other times when you have been excused from your shift. This behaviour has to stop immediately.
The Club expects that you will show an immediate and sustained improvement in the areas for which you have been warned. Should this not occur, further disciplinary action may result up to and possibly including termination of your employment.”
[64] Evidence was given in these proceedings in relation to some of the ways in which Ms Brown has refused to obey directions given to her by supervisors and managers at work. By way of example, on 15 August 2016 Ms Brown was working at the Club on a function for a group of golfers in an upstairs function room. Ms Brown left the function unattended on a number of occasions in order to go downstairs to fetch drinks for the guests at the function. Her supervisor, Mr Wynands, instructed her on a number of occasions to stop leaving the function unattended. He gave that instruction because leaving a bar unattended is “poor responsible service of alcohol”. Mr Wynands accepted that patrons at the function may have wanted a particular drink that was not stocked in the function room, but if that were the case he says Ms Brown should have called him and he would have retrieved the drinks or any stock she required. On the night in question Mr Wynands directed Ms Brown to stop leaving the function unattended and call him if she needed assistance. She did not comply with that direction. Ms Brown contends that Mr Wynands was “periodically out of the Club doing the bus run and was not able to assist me”. 46 I do not accept that evidence. I prefer Mr Wynands’ evidence that he finished doing the bus run prior to the commencement of the function and was contactable during the shift when the function was being held.47 In my view, Mr Wynands’ evidence in relation to this issue is more plausible than Ms Brown’s contention that Mr Wynands told her that he would be able to bring her stock if she required it,48 but he was off the premises and unable to assist. In any event, even if Mr Wynands was periodically out of the premises during the shift, Ms Brown could have requested assistance from the other supervisor on duty and if that supervisor was busy, as Ms Brown alleges, it would have been a matter for the two supervisors to decide how to prioritise the various tasks that needed to be done. I do not accept Ms Brown’s contention that the other supervisor could not be contacted or called on to assist because he was doing raffles and membership draws.49 I am satisfied that Ms Brown could have arranged for a message to be given to the other supervisor when he was conducting raffles and membership draws, seeking assistance in the function so as to comply with Mr Wynands’ direction for her not to leave the function unattended.
[65] It is clear from Ms Brown’s evidence in relation to this issue and others similar to it that she takes the view she has the right to disobey an instruction from a supervisor or manager if she believes it is unreasonable, in the sense that the direction would result in her not providing what she perceives to be an efficient level of service to patrons at the Club. 50 Ms Brown does not have such a right. An instruction from an employer will only be unreasonable if no reasonable employer could have issued the instruction.51 It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties.52
[66] This misunderstanding on Ms Brown’s part in relation to when she can refuse to follow a direction given to her by a supervisor or manager is at the core of a number of the disputes she has been involved in at the Club. If the employment relationship between Ms Brown and the Club is to endure over the medium to long term, it will be necessary for Ms Brown to appreciate and understand that supervisors and managers may have different views to her about operational matters and which tasks or functions need to be prioritised at the Club, but she must follow the directions given to her about those matters by managers and supervisors unless they fall into the limited category of directions that are either unlawful or unreasonable in the sense that no reasonable employer could have issued the direction. It is not enough that Ms Brown is a hard worker who has the interests of patrons at the forefront of her mind. She must follow reasonable and lawful directions given to her in the workplace by supervisors and managers.
[67] Mr Wynands has not received a written warning from the Club. 53 In contrast, prior to late 2015 Ms Brown had received a written warning (dated 26 May 2015) for showing a “lack of respect for management”.54 It was relevant and appropriate for the Club to have regard to this difference between the disciplinary record of Ms Brown and Mr Wynands when deciding on what disciplinary action should be taken against Ms Brown for using aggressive language towards Ms Riches. I am satisfied that the written warning issued to Ms Brown on 18 November 2015 was reasonable and appropriate in the circumstances. I am also satisfied that the Club has not failed to deal with Ms Brown in a fair and equitable manner, nor has it applied inconsistent disciplinary or performance management standards for similar conduct.
Third instance of alleged bullying
[68] Ms Brown contends that the Club failed to conduct an investigation in a fair and equitable manner. In particular, Ms Brown submits that the investigation conducted by Mr Indrele in about July 2016 was flawed in a number of ways, including:
(a) Ms Brown was denied an unbiased opportunity to speak to issues or address matters in dispute during the investigation;
(b) Ms Brown was denied access to relevant information during investigation, namely one of the “key documents” Mr Indrele apparently examined in his investigation was a written complaint from Ms Riches dated 22 January 2016. Ms Brown was not provided with a copy of that document during the investigation;
(c) the investigation was subjective and conclusions were based on opinion and speculation;
(d) Ms Brown was not given an opportunity to review or confirm the truth and/or accuracy of the responses provided by herself and various other witnesses to Mr Indrele during the investigation;
(e) Mr Indrele had no involvement in the investigation conducted by Mr Norrie and did not receive a copy of Mr Norrie’s report, but Mr Indrele made comments in relation to it;
(f) Mr Indrele did not speak to Mr Patricks during the investigation; and
(g) Mr Indrele gave evidence that Ms Brown provided “excuses” in relation to her non-utilisation of the tablet and wine pumping systems.
[69] Mr Indrele is an external workplace consultant. He was formerly employed by Clubs NSW. He has experience in conducting workplace investigations, including in relation to workplace bullying allegations.
[70] In circumstances where the Club does not have any specialist human resources employees and in light of the nature of the allegations made by Ms Brown in her Application, I am satisfied that the Club’s engagement of Mr Indrele to review those allegations, amongst other things, was appropriate and constituted reasonable management action carried out in a reasonable manner. Further, for the reasons set out in the following 14 paragraphs I am satisfied that the way in which Mr Indrele’s investigation was conducted was fair, unbiased, thorough, equitable, did not constitute, or give rise to, any unreasonable behaviour towards Ms Brown, and constituted reasonable management action carried out in a reasonable manner.
[71] Mr Indrele conducted approximately 12 interviews during his investigation. Ms Brown was one of the people interviewed by Mr Indrele during his investigation. Ms Edwards was present in her capacity as Ms Brown’s support person during that interview. I am satisfied that Mr Indrele gave Ms Brown sufficient information to enable her to understand the matters he was investigating in so far as they concerned her and afforded her a reasonable opportunity to respond to those matters.
[72] Mr Indrele found Ms Brown a difficult person to interview. Mr Indrele’s opinion in this regard is based on his evidence, which I accept, that “rather than simply answering the questions I put forward, Ms Brown often responded by saying ‘show me a statement’ or ‘I’ll need a statement before I respond to that’ or words to that effect.” 55 Further, given Ms Brown’s responses to the disciplinary action taken against her by the Club and the investigations undertaken by or on behalf of the Club in relation to matters involving her, I am satisfied that there was a reasonable basis for Mr Indrele to express the opinion that “I expect that Ms Brown is likely to object to any future disciplinary action or processes, regardless of a) who carries this out, b) how it is carried out, and c) the reasons for such action.”56
[73] Mr Indrele did not take witness statements from Ms Brown or any other witnesses, nor did he give Ms Brown or any other witness an opportunity to comment on the notes he took during his interviews with witnesses. I am satisfied, however, from the answers Mr Indrele gave to the questions asked of him in cross examination in these proceedings that during his investigation he gave witnesses a fair opportunity to speak and he took the time to understand their responses to the questions he asked of them. In the circumstances of this case, I am satisfied that a reasonable investigation into the matters raised by Ms Brown in her Application did not require Mr Indrele to take witness statements from Ms Brown or any other witnesses, nor did it require him to give Ms Brown or any other witness an opportunity to comment on the notes he took during his interviews with witnesses. Taking such steps may constitute the best course of action available to an employer, but it is not necessary, in my view, for the investigation to be reasonable. 57
[74] In his report, Mr Indrele summarised the allegations he was instructed to investigate, made findings in relation to those allegations, and then set out a number of recommendations, some of which related to a broad number of employees and others pertained solely to Ms Brown. Mr Indrele found that Ms Brown had been treated reasonably in connection with the disciplinary action taken against her by the Club. Mr Indrele did not recommend that any further disciplinary action be taken against Ms Brown.
[75] Consistent with one of the recommendations made by Mr Indrele, the Club decided that Mr Walden would no longer be responsible for carrying out any disciplinary action in relation to Ms Brown and all workplace relations matters involving her would be referred to the Board of the Club to be dealt with, together with assistance from Clubs NSW. 58
[76] Mr Indrele’s report refers to a written complaint from Ms Riches regarding Ms Love and Ms Brown dated 22 January 2016 as one of the “key documents” Mr Indrele examined during the investigation process. That document was not provided to Ms Brown during Mr Indrele’s investigation, nor has it been tendered by either party in these proceedings, nor was it the subject of an order for production of documents by either party. Mr Indrele took the view that Mr Norrie had already undertaken an investigation into the complaint made by Ms Riches against Ms Brown in late 2015 and found, on the balance of probabilities, that the complaint was made out. Having regard to that investigation, Mr Indrele commented in his report on the process undertaken by the Club to have Ms Riches’ complaint investigated and the subsequent written warning issued by the Club to Ms Brown, but Mr Indrele did not seek to make any findings for himself as to whether the allegations made by Ms Riches should be accepted. 59 In those circumstances, I am satisfied that there was no unreasonable behaviour towards Ms Brown by reason of the fact that the document dated 22 January 2016 was not provided to Ms Brown during Mr Indrele’s investigation.
[77] Mr Indrele was required to express opinions about the matters he was engaged to investigate. For example, Mr Indrele was required to investigate Ms Brown’s allegation that Mr Walden’s decision to suspend her in November 2015 was not justified or explained. After considering relevant evidence in relation to these allegations, Mr Indrele expressed the views that the suspension was “justified” and the decision to suspend was explained in the letter dated 11 November 2015. Mr Indrele gave reasons for his findings and conclusions, some of which were based on his opinion, which was appropriate in the circumstances. I reject the contention that Mr Indrele’s investigation was subjective and his conclusions were based on speculation.
[78] In light of the allegations made by Ms Brown in her Application, it was necessary for Mr Indrele to consider the way in which the Club dealt with the complaints made by Ms Riches and Mr Patricks against Ms Brown in late 2015. Mr Indrele recorded in his findings that Mr Norrie undertook an external investigation in relation to these matters and, as a result of that investigation, the Club issued Ms Brown with a second written warning. Although Mr Indrele did not speak to Mr Norrie about his investigation or receive a copy of any final investigation report from Mr Norrie, Mr Indrele expressed the view in his report that it was reasonable for the Club to issue the written warning to Ms Brown in November 2015 based on a finding made, on the balance of probabilities, by an external investigator such as Mr Norrie in relation to what had allegedly been said by Ms Brown to Ms Riches in the workplace. I am satisfied that it was appropriate and reasonable in the circumstances for Mr Indrele to make such observations and express such views in relation to the process adopted by the Club to investigate the complaints in late 2015 and then issue Ms Brown with a written warning on 18 November 2015. I am also satisfied that it was not unreasonable for Mr Indrele to make observations in his report about the level of criticism Ms Brown made to him about Mr Norrie’s investigation. 60
[79] There is no dispute that Mr Patricks was not present when Ms Brown allegedly made disparaging comments about him. Accordingly, putting to one side the reasonableness of reopening this matter, about which I have made findings above, it was reasonable for Mr Indrele not to interview or speak to Mr Patricks.
[80] One of the other allegations Mr Indrele examined during his review was that Ms Brown was generally difficult to work with, often refusing instructions from supervisors, and being unwilling to accept change. Two examples provided by Mr Wynands to Mr Indrele included Ms Brown’s unwillingness to use the tablet system for taking orders from customers in the bistro, and the wine pumping system recently implemented. In relation to these matters, Mr Indrele found as follows: 61
“During her interview, Ms Brown stated that she was not difficult to work with. However, the information provided by Mr Cunningham, Mr Wynands and to a lesser extent Mr Wellham would suggest otherwise Ms Brown conceded that she was reluctant to accept two recent changes to operational processes being put forward by supervisors such as use of the tablet system, and use of the wine pumping system.”
[81] As to the specific example concerning Ms Brown’s use of the tablet system to take orders from customers in the bistro, Mr Wynands wrote a report in about December 2015 in relation to a number of concerns he had with Ms Brown’s performance and attitude at the time, including the following comments about the tablet system: 62
“Time and time again getting asked to use the tablet in the bistro. Saying that it is too slow and if the boss wants it use [sic] tell him to come and do a shift with the tablet.”
[82] Mr Wynands told Mr Indrele about the issue with the tablet when he was interviewed as part of Mr Indrele’s investigation.
[83] Ms Brown clearly understood this allegation and was able to respond to it; she denies that she has ever refused to use the tablet to take orders from customers in the bistro. Ms Brown says the tablet is regularly not functioning properly, and so cannot be used. Mr Wynands agreed in his oral evidence that there have been some problems with the tablet system, 63 but he maintained that Ms Brown has been reluctant to use it and has on occasions refused to use it.64
[84] I prefer the evidence given by Mr Wynands over the evidence given by Ms Brown in relation to the tablet issue, for two reasons. First, Mr Wynands wrote a contemporaneous report about the matter; it is consistent with his oral evidence in relation to this issue. Secondly, Ms Brown’s reluctance to use the tablet system is consistent with her refusal to follow directions in the workplace if she believes there is a better way for the work to be done. I have addressed that topic in paragraphs [64] to [66] above. In the circumstances, I am satisfied that Mr Indrele acted reasonably in making his findings in relation to whether Ms Brown was difficult to work with. It is also relevant to note that the Club has not taken any action, whether disciplinary or otherwise, in relation to Mr Indrele’s findings in about July 2016 concerning Ms Brown being difficult to work with or the specific issues of the tablet system or the wine pumping system.
Fourth instance of alleged bullying
[85] Ms Brown contends that the Club unreasonably refused to allow her to view CCTV footage in relation to the complaint she made against Mr Wynands for aggressively forcing her arm down at a time when she was assisting patrons at the Club by pointing her arm in a particular direction.
[86] Ms Brown also points to the fact that there was an incident where she supposedly crashed into Mr Cunningham behind the bar at the Club and he required a cortisone injection. Ms Brown was not shown any CCTV footage of that incident.
[87] As to the incident involving Mr Wynands, it has never been in dispute that Mr Wynands did walk past Ms Brown at the time she pointed in a particular direction. Mr Wynands says he “put my hand out to stop her hitting me in the face. I opened my palm and pushed her hand down out of the way and continued walking. I did not see this as a major issue was amazed that a fuss was made about it.” 65
[88] Ms Brown asked Ms Edwards to bring her complaint about Mr Wynands to the attention of the Club. Ms Edwards did so in an email in the following terms to Mr Walden sent at 12:06 pm on 12 May 2016: 66
“Good Afternoon Grant,
I received the below email from Belinda Brown last night at 5:32 PM.
Could you please observe the CCTV footage for this incident and respond.” [emphasis added]
[89] Mr Walden complied with Ms Edwards request and viewed the CCTV footage. 67 He responded to Ms Edwards by stating:68
“... I have viewed the reference to footage at 17:55 on 9/5/2016 which shows Belinda assisting visitors with the appropriate areas for children to sit.
During this Belinda raises her hand behind her to explain the boundaries to the patrons when Garry Wynands moves past pushing Belinda’s forearm with his so that he could pass.
The footage at no time shows Garry acting with force against Belinda, but does show a comment being made to the patrons that receives a response and a shrug of the shoulders from one. There was no further action by Garry only a look of contempt from Belinda. Garry will be spoken to in relation to this on his return to determine his response…”
[90] Mr Wellard also reviewed the CCTV footage and formed the view that there was no aggressive movement by Mr Wynands towards Ms Brown. 69 The Club spoke to Mr Wynands about the issue and raised with him how to better manage the issue in the future.70 No further action was taken.
[91] It is important to note that Ms Edwards did not ask for the Club to show her or Ms Brown the CCTV footage; Ms Edwards asked Mr Walden to review the CCTV footage. 71 He did so, as did Mr Wellard. They both formed the view that Mr Wynands did not act aggressively towards Ms Brown. In those circumstances, I am satisfied that there was no unreasonable failure to provide Ms Brown with all relevant information in relation to her complaint against Mr Wynands.
[92] As to the CCTV footage of the incident when Ms Brown supposedly crashed into Mr Cunningham behind the bar at the Club and he required a cortisone injection, both Ms Brown and Mr Cunningham agree it was an innocent accident at a busy time in the Club. No disciplinary action was taken by the Club in relation to the incident. There was therefore no need for the Club to review the CCTV footage or, if it did, provide it to Ms Brown or Mr Cunningham. Accordingly, I reject any argument of inconsistent treatment in relation to the use or viewing of CCTV footage by the Club in relation to incidents in the workplace involving Ms Brown.
[93] I have found that the warning letter issued to Ms Brown by Mr Bugden on 18 October 2016 was unreasonable behaviour towards Ms Brown, and was not reasonable management action carried out in a reasonable manner. However, having examined the other allegations pressed by Ms Brown in final submissions, I am satisfied, for the reasons set out above, that there has not been any repeat of any unreasonable behaviour towards Ms Brown by an individual or group of individuals at work. Accordingly, I find that Ms Brown has not been bullied at work within the meaning of s.789FD of the Act.
[94] In light of my conclusion that Ms Brown has not been bullied within the meaning of s.789FD of the Act, I do not have the power to make an order in these proceedings to require the Club to withdraw or retract the warning given to Ms Brown on 18 October 2016 in relation to Mr Patricks’ complaint, although the Club may elect to take such action in view of Mr Bugden’s concession, 72 and my finding, that it was unreasonable of the Club to issue that warning at the time that it did. Similarly, I do not have the power to make an order requiring the Club to do what it has already agreed to do in relation to dealing with issues in the workplace involving Ms Brown. Those measures are set out in the witness statements of Mr Walden, Mr Bugden, and Mr Gardner.
[95] The Application is dismissed.
COMMISSIONER
Appearances:
Mr C Acev, Industrial Research Director from United Voice, on behalf of the applicant;
Ms V Gnjatic, Member Enquiries Team Leader from Clubs NSW, on behalf of the respondent.
Hearing details:
2017.
Newcastle:
January, 23.
2016.
Coffs Harbour:
November, 28 & 29.
1 GC [2014] FWC 6988 (GC) at [47]
2 Mac v Bank of Queensland Limited [2015] FWC 774 (Mac v BOQ) at [90]
3 Ibid at [91]
4 Re SB (2014) 244 IR 127; [2014] FWC 2104 (Re SB) at [41]
5 GC at [45]
6 Ibid; Mac v BOQ at [88]-[89]
7 Re SB at [49]
8 Re SB at [51]
9 PN2593-4
10 Exhibit R1 at annexure H
11 Exhibit A5 at annexure C
12 PN701
13 Exhibit R1 at [13]
14 PN1318-1330
15 PN1326
16 PN813-816
17 Exhibit R1 at annexure H
18 PN671; exhibit R6 at [3]
19 Exhibit R6 at [3]
20 PN705
21 Exhibit R1 at annexure J
22 PN1089-90
23 PN1103
25 PN1089-90
26 Exhibit R1 at annexure I
27 Exhibit R1 at [7]
28 Ibid
29 Exhibit R1 at annexure K
30 Exhibit A5 at [42]
31 PN340
32 PN342
33 Exhibit A5 at [54]
34 PN335; see, too, exhibit R1 at annexure L [19]
35 Exhibit R1 at annexure J
36 Ibid
37 PN354
38 Ms LP [2015] FWC 6602 at [43]
39 Ibid at [41]-[42]
40 Exhibit R1 at [7]
41 Exhibit R1 at annexure N
42 PN399-401
43 PN1629
44 See paragraphs [56]-[57] above; see, too, PN288
45 PN714-724
46 Exhibit A6 at [76]
47 PN1637-1650
48 PN238
49 Exhibit A6 at [77]; PN238
50 PN261
51 CFMEU v Glencore Mt Owen Pty Ltd [2015] FWC 7752 at [8]-[11]
52 Briggs v AWH (2013) IR 231 159 at [8]
53 PN883
54 PN882
55 Exhibit R4, annexure A, Part 1, [20]
56 Exhibit R4, annexure A, Part 1, [21]
57 Mac v BOQ at [91]
58 Exhibit R1 at [18]
59 PN1225
60 Exhibit R4, annexure A, Part 1, [20]
61 Exhibit R4, annexure A, Indrele Report at Investigation Findings, Part 1, [19].
62 Exhibit R6 at annexure D
63 PN1585
64 PN1586-1595
65 Exhibit R6 at [7]
66 Exhibit A3 at annexure K
67 Exhibit A3 at annexure L
68 Ibid
69 Exhibit R7 at [7]
70 Exhibit R1 at [14]
71 See paragraph [88] above
72 See paragraph [38] above
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